Artillery Row

Free speech, councillors and new disqualification rules

Proposed local government requirements would greatly impinge on freedom of speech

If you are lucky enough to be elected a local councillor, you will very quickly be told that your council has, and indeed by law has to have, a Code of Conduct that you have to follow. In practice most authorities take over, with few if any amendments, the model code provided by the government. This covers such obvious matters as declaring interests, keeping secrets and acting impartially and with integrity on matters like planning applications. But it also goes a good deal further, taking in what are essentially matters of civic virtue. For example, it requires, in a fairly open-ended way, that you treat others with respect, and avoid doing anything that might be regarded as bringing your office or authority into disrepute.

If we believe in local democracy, then it is only the electorate that should be able to fire you

So far, so good. But what happens if you break the code? Here things become more interesting. In England, since a commendable piece of legislation from the Cameron government nine years ago known as the Localism Act 2011, there is a carefully thought-out balancing act. In the event of breach, the council can reprimand you; it can name you and shame you. It can request you to undergo implicit bias training; it can keep you off particular committees. In an extreme case it can even require you to be chaperoned when on council premises. You can also, of course, be publicly disowned by your own party caucus if you say or do something really outrageous. But one thing is not allowed: you can’t be administratively removed or suspended, or excluded from council meetings. The only exceptions are where you are bankrupted, or imprisoned for three months following a criminal conviction, or fail to show up for meetings for six months, all of which legally disqualify you. But nothing short of that will suffice. This is on the understandable basis that if we believe in local democracy, then, extreme cases aside, it is only the electorate which hired you that should be able to fire you.

This balance is, however, now under serious threat. In January last year there was a report from the Committee on Standards in Public Life (CSPL), a semi-official body of eight set up 25 years ago to advise the Prime Minister on public conduct generally. It took a very dim view. As might have been expected from a committee made up of a congeries of fairly uncontroversial politicians and members of the great and the good fresh from successfully climbing the greasy pole of quangocracy, it took as top priority the maintenance of discipline and decorum and the promotion of a squeaky-clean reputation. It therefore said council officers ought to have their own power not only to sanction, but to suspend councillors for up to six months, for any breach of the rules. The sanction of the ballot-box it haughtily dismissed. Having patronisingly commented that voters voted for all sorts of reasons, and might not be particularly concerned with candidates’ overall conduct, it summed up with an interesting exercise in doublethink: “A standards regime,” it said, “that prevents a councillor from carrying out their role for a period, for example by suspension, does not undermine a councillor’s electoral mandate. Rather it underlines the significance of the role and the expectations of high ethical standards that come with elected office.”

Non-criminal matters, that wouldn’t otherwise disqualify people from election, is none of the state’s business

Thankfully, any thought of quick action to implement these alarmingly anti-democratic proposals disappeared with the turbid national political developments in 2019 and the 2020 Covid-19 debacle that followed them. But the subject of reining in what are seen as wayward councillors has recently come back to the fore. The Local Government Association has just consulted on its proposals for a revised model Code of Conduct; and while that body judiciously said nothing about sanctions, a number of persons and bodies replying to the consultation have been a good deal less reticent. The National Association of Local Councils, for example, has publicly taken the opportunity to resuscitate the CSPL’s demands, as has the suave Lord Evans, the chairman of the CSPL itself. A number of other professional bodies are understood unofficially to be exerting similar pressure.

These demands must be resisted. For one thing, the whole point of democracy, including local democracy, is that there should be a clean break between serious matters that should disqualify people from election, such as criminality (and perhaps proof of actual fraud or corruption), and everything else, which is none of the state’s business. The CSPL’s willingness to allow councils themselves to exercise a policing function to ensure what it sees as high standards of councillor behaviour is a clear example of state intervention where it does not belong, and has a worryingly anti-democratic qand corporatist ring to it. If we are to trust electors with a franchise, this means that if they wish to elect someone whose standards don’t correspond with ours, or those of the great and the good, that is their business. It certainly is not the state’s to prevent them, or to protect them from bad judgment.

Requirements such as treating people with respect have the potential to impinge on freedom of speech

For another, there are clear and rather ominous implications for freedom of speech here. Requirements such as treating people with respect, or not bringing the council or your office into disrepute, clearly have the potential to impinge on what would otherwise be entirely lawful speech. Whatever the merits of allowing private employers to limit what their employees are allowed to say in a non-official capacity (and there are strong reasons for tighter limits even here), it is very difficult to justify penalising an elected councillor for saying what he thinks, however ill-tempered or offensive, or for that matter to threaten proceedings in such a way as to encourage him always to look over his shoulder for saying anything controversial. The views a councillor expresses should be a matter for the electorate, and for no-one else.

There is also a further point. Whatever people may say about the need to clean up politics or inject civility into it, in practice it is always the mavericks, the independents and the boat-rockers who find life being made difficult. Their contributions can matter: and it is a very unhealthy atmosphere when the pressure is on everyone involved in local politics to say only what is approved by the party machines or is otherwise uncontroversial or face possible removal from the political arena.

So much for matters of democratic principle: but we can go further. The matter can actually be tested, since we have a ready-made control group. True, in England there is not much that can be done about a maverick councillor who offends received opinion and then stands his ground in true John Bull fashion – apart from wait for the next election. But things are very different elsewhere in Britain. Whether this arises from a felt need to flex some devolutionary muscles or from some curious Celtic desire to boss people around is not apparent: but the fact remains that Scotland, Wales and Northern Ireland have all rejected the English approach and enthusiastically adopted the idea that administrative bodies should be able to keep councillors in line, if necessarily by suspending them entirely if they step out of it. The results should give anyone thought.

Last year, for example, the Standards Commission for Scotland suspended a Labour West Lothian councillor for three months for approving on Twitter, and honestly defending in the press against charges of racism, a piece of writing by a third party: the ground was that the writing was seen by others as antisemitic, and that any defence of it, whatever its good faith, disrespectful. A few months later it handed down a similar two-month suspension to a transgender Dundee councillor. His crime had been incautiously to call someone he disagreed with as a TERF, and to criticise in strong terms a lesbian group that had interfered with a Gay Pride march in the name of women’s solidarity. The process continues: the same august body is at present busy investigating, at the request of another group of the easily-offended, another West Lothian councillor. This time it’s a Tory, guilty they say of having tweeted critically of George Floyd and jokingly asked if it was still permissible to buy sweets known as Black Jacks. The result is awaited.

Meanwhile, west of Offa’s Dyke a Monmouthshire councillor in 2018 found himself prohibited from representing his constituents for two months, for emails questioning the morality of homosexuality; and a Neath representative got double that for four months for suggesting that a local murder victim might not have herself been entirely free from blame for the argument that led to the fracas. There too the process of suppressing speech by administrative process merrily continues: only three weeks ago a Powys councillor faced being put under official investigation, following a report from Welsh language zealots, for the heinous crime of suggesting that large numbers of people in Wales did not really want to have Welsh foisted on them.

Perhaps the most egregious case of political interference, however, comes from Northern Ireland. In 2014 Jolene Bunting was elected to Belfast City Council on a tub-thumping religious conservative, pro-Unionist, anti-Nationalist ticket. She lived up to her constituents’ expectations, twice joining Britain First at rallies at which Islam was criticised, and in addition making clear her intransigent views on religion at a council meeting. She also published a pro-Unionist cartoon on social media which happened to contain a tasteless reference to the 1845 Irish famine. Her enemies made full use of the procedures available to them. The result was that in 2018 she found herself legally suspended for four months; even the fact that she lost her seat shortly afterwards did not prevent the proceedings being continued against her with a view to disqualifying her in case she ever had the temerity to run in any future local election.

You may not agree with the views expressed by any of these people. Vulgar abuse and the defence of racist views are never pretty: and opinions like those of Jolene Bunting and Britain First are, to say the least, not everyone’s cup of tea. But however vulgar, distasteful or unpleasant you find them, none of them is illegal to express, and in an area of small constituencies they often represent the genuine views of a preponderance of the electors. It is very difficult to justify removing them by administrative or legal fiat from the democratic process; and it would be a great pity if England followed the lead of Wales and Scotland in doing this. If we do, we are in danger of ending up with a boring sameness in local politics as we have elsewhere among the great and the good – and, one suspects, in such earnest and worthy organisations as the National Association of Local Councils. It’s a depressing prospect; and anyone who believes in local democracy should now be doing all they possibly can to scotch it.

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